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Every DUI arrestee is subjected to some advisement of his or her right to remain silent and the intent of each officer is to provide you with your right to counsel, if requested. However, sometimes that is not always completed. Each denial of counsel case can have different scenarios ranging from (1) outright denial to counsel to (2) a reasonable effort made by law enforcement to put someone in touch with counsel to (3) a lack of reasonable effort to get in touch with counsel.

In a recent case of mine, the trooper did make a reasonable effort to put my client into touch with counsel, but her efforts were in vain as both public defender agencies failed to respond to her inquiries. These calls to the public defender's office (attorney's on-call) went unanswered and put the trooper in a predicament not normally found. That is, she then had to wait 45 minutes until making up her mind to present the client with the opportunity to blow or decline. Ultimately the judge in our case held the court itself had a responsibility to make counsel available as the public defender agencies were contracted through the court and had an obligation to respond. Since no one did, the proper remedy, due to no fault of the trooper or my client was suppression of the "tainted" evidence, the breath test. In other scenarios, for example, when a trooper fails to provide the defendant with requested counsel the court's have discretion to dismiss a case. See, City of Tacoma v. Myhre, State v. Pierce, City of Spokane v. Kruger and CrRLJ 3.1 All of these address the right to counsel.

Now, other times a defendant may be the cause of the "denial of right to counsel" by actions, such as being obstinate and not picking up the phone, fighting with officers, etc. and very likely those cases will have no action taken by the court (via dismissal or suppression). All that being said, it is always best to ask to speak to an attorney and not to waive your right to remain silent.

On a side note, when presented with a document titled "Constitutional Rights" be aware the Washington State Patrol has authored this form and has purposefully made the "Waiver" portion of the form ambiguous, so much that the word "waiver" is intentionally left out, even though officers testify all the time "when I presented him with waiver portion, he agreed" etc. This is because they want you to inadvertently waive your right and the courts have held the language utilized in the form is sufficient for a proper waiver.

Here is the form's "waiver": I understand my constitutional rights. I have decided not to exercise these rights at this time. Any statements made by me are made freely, voluntarily, and without threats or promises of any kind.

See how the word "waiver" is conspicuously absent, that is intentional! The best advice is to just always say as soon as you are arrested, I would like to speak with my attorney!

Here is the relevant court rule regarding your right to counsel (CrRLJ 3.1):

RULE CrRLJ 3.1 RIGHT TO AND ASSIGNMENT OF LAWYER

(a) Types of Proceedings. The right to a lawyer shall extend to all criminal proceedings for offenses punishable by loss of liberty regardless of their denomination as felonies, misdemeanors, or otherwise.

(b) Stage of Proceedings. (1) The right to a lawyer shall accrue as soon as feasible after the defendant has been arrested, appears before a committing magistrate, or is formally charged, whichever occurs earliest. (2) A lawyer shall be provided at every critical stage of the proceedings.

(c) Explaining the Availability of a Lawyer. (1) When a person has been arrested he or she shall as soon as practicable be advised of the right to a lawyer. Such advice shall be made in words easily understood, and it shall be stated expressly that a person who is unable to pay a lawyer is entitled to have one provided without charge. (2) At the earliest opportunity a person in custody who desires a lawyer shall be provided access to a telephone, the telephone number of the public defender or official responsible for assigning a lawyer, and any other means necessary to place him or her in communication with a lawyer.

(d) Assignment of Lawyer. (1) Unless waived, a lawyer shall be provided to any person who is financially unable to obtain one without causing substantial hardship to the person or to the person's family. A lawyer shall not be denied to any person merely because his or her friends or relatives have resources adequate to retain a lawyer or because he or she has posted or is capable of posting bond. (2) The ability to pay part of the cost of a lawyer shall not preclude assignment. The assignment of a lawyer may be conditioned upon part payment pursuant to an established method of collection. (3) Information given by a person to assist in the determination of whether he or she is financially able to obtain a lawyer shall be under oath and shall not be available for use to the prosecution in the pending case in chief. (4) Before appointing a lawyer for an indigent person, or at the first appearance of the lawyer in the case, the court shall require the lawyer to certify to the court that he or she complies with the applicable Standards for Indigent Defense Services to be approved by the Supreme Court.

(e) Withdrawal of Lawyer. Whenever a case has been set for trial, no lawyer shall be allowed to withdraw except upon consent of the court for good cause shown and upon substitution of another lawyer or upon the defendant's knowing and voluntary decision to proceed without a lawyer.

(f) Services Other Than Lawyer. (1) A lawyer for a defendant who is financially unable to obtain investigative, expert or other services necessary to an adequate defense in the case may request them by a motion to the court. (2) Upon finding that the services are necessary and that the defendant is financially unable to obtain them, the court, or a person or agency to which the administration of the program may have been delegated by local court rule, shall authorize the services. The motion may be made ex parte, and, upon a showing of good cause, the moving papers may be ordered sealed by the court, and shall remain sealed until further order of the court. The court, in the interest of justice and on a finding that timely procurement of necessary services could not await prior authorization, shall ratify such services after they have been obtained. (3) Reasonable compensation for the services shall be determined and payment directed to the organization or person who rendered them upon the filing of a claim for compensation supported by affidavit specifying the time expended and the services and expenses incurred on behalf of the defendant, and the compensation received in the same case or for the same services from any other source.

[Amended effective September 1, 1995; June 30, 2012].

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Nathan "Nate" Webb has been repeatedly recognized by Washington Law and Politics Magazine as a Super Lawyer Rising Star, named one of Seattle's Top Attorneys by Seattle Met Magazine and is rated Superb (perfect 10 out of 10) by Avvo.com.

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